William Holmes and John Whittle against Charles Tutton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | High Court |
English Reports Citation: 119 E.R. 405
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 24 L. J. Q. B. 346; 1 Jur. N. S. 975. Approved, Turner v. Jones, 1857, 1 H. & N. 882. Applied, Tilbury v. Brown, 1860, 30 L. J. Q. B. 47. Distinguished, Murray v. Arnold, 1862, 3 B. & S. 295. Discussed, Wood v. Dunn, 1865-66, L. R. 1 Q. B. 81; L. R. 2 Q. B. 81; Emanuel v. Bridger, 1874, L. R. 9 Q. B. 289; Ex parte Banner, 1874, L. R. 9 Ch. 381; Lowe v. Blakemore, 1875. L. R. 10 Q. B. 485; Stevens v. Phelips, 1875, L. R. 10 Ch. 421; Ex parte Joselyne, 1878, 8 Ch. D. 330.
[65] cases argued and determined in the queen's bencei, in trinity term, XVIII. victoria. The Judges who usually sat in Bane in this Term were : Lord Campbell C.J., Coleridge J., Erie J., Cromptou J. / ò/' * J Xi/j.= ,ò l^'.-j^.--'-' -'ò. ;- william holmes and john whittle against charles tutton. 1855. A judgment creditor, H., having by leave of a Judge proceeded against a garnishee, under sect. 64 of The Common Law Procedure Act, 1854, a case was stated for the Court disclosing the following facts.-Garnishee was an auctioneer. P. sent him goods for sale for ready money, not to be removed until payment. The auctioneer sold them on those terms, stated in the conditions of sale, and received part of the price from some of the purchasers : but H., who had purchased part, took them away without payment, and without the consent of the auctioneer or of P. H. refused to pay, offering to set off a debt due to him from P.; this waa declined. H. having obtained judgment against P., obtained an order to attach the price of the goods remaining in the auctioneer's hands under The Common Law Procedure Act, 1854, sect. 61, which was served on the garuishee. On the same day, but after the service, P. became bankrupt. His assignees claimed the money from the garnishee, and also demanded payment from H. of the price of the goods taken away by him.-Held : that the effect of sect. 62 was that the service bound the debt so as to render the judgment creditor a creditor having 406 HOLMES V. TUTTON 5 EL. & BL. 66. security for his debt, within sect. 184 of The Bankrupt Law Consolidation Act, 1849 (12 & 13 Viet, c, 106), but did riot give a lien, so as to bring him within the exception in that section; and, consequently, that the judgment creditor could not prevail against the assignees.-Held, also, that, if the auctioneer should sue H. in his own name ex contractu for the goods sold, H. would have a defence by a plea in the nature of set-off, or at least by way of equitable defence. Or, if the assignees sued on the contract, he would have a defence by way of mutual credit. But that the assignees might recover in trover, to which H. would have no defence. [S. C. 24 L. J. Q. B. 346; 1 Jur. N. S. 975. Approved, Turner v. Jones, 1857, 1 H, & N. 882. Applied, Tilbury v. Brown, I860, 30 L. J. Q. B. 47. Distinguished, Murray v. Arnold, 1862, 3 B. & S. 295. Discussed, Wood v. Dunn, 1865-66, L. R. 1 Q. B. 81 ; L. R. 2 Q. B. 81; Emanwl v. Bridger, 1874, L. R. 9 Q. B. 289; Ex parte Banner, 1874, L. ft. 9 Ch. 381; Lowe v. Blakemore, 1875, L. R. 10 Q. B. 485; Stevens v. Phelips, 1875, L. R. 10 Ch. 421; Ex parte Joselyne, 1878, 8 Ch. D, 330.] The following case was stated for the opinion of this Court by order of a Judge, pursuant to The Common Law Procedure Act, 1852. [66] Simeon Pitman, builder, was indebted to the plaintiffs in this action in the sum of 1411. 15s. 6d. for goods sold and delivered, money advanced, also upon his acceptance and for interest thereon. Pitman advertised his goods to be sold by auction by Charles Tutton (an auctioneer and the defendant in this action) on the 9th day of October 1854. The goods were accordingly sold by auction by the defendant in lots on the premises occupied by Pitman, and on behalf of Pitman, under certain conditions of sale, one of which was that all goods were " to be taken away the day after the sale and the money paid before delivery." At this sale an agent of plaintiffs attended and purchased, in their names, lots amounting to 861. 9s lid. : defendant, the auctioneer, had no knowledge that Pitman was indebted to plaintiffs. The goods realized altogether 1911. 10s. 3d., including therein the above mentioned sum of 861. 9s. lid., purchased by plaintiffs, without deducting the auctioneer's charges amounting to 141. 8s., and a payment for rent amounting to 151. 10s., which he had undertaken to make out of the proceeds, and which he has since paid, and a further payment of II. Os. 5d. for property tax then due, and which he had guaranteed to pay, but has not yet paid. On the day following the sale, about 6 o'clock in the morning, before the auctioneer or any person on his behalf was present to deliver the lots, the plaintiffs sent men and conveyances and removed the goods purchased by the plaintiffs, and which had continued on the premises occupied by Pitman up to that time (no other person but Pitman being in actual charge of them), without any order from the defendant for their delivery, and without his knowledge, and without payment or [67] tender to any person of the price. Pitman interfered and endeavoured to prevent such removal, and protested against the same, saying that they the plaintiffs " were robbing him of his goods." The defendant in this action thereupon sent an invoice of the articles purchased, and demanded immediate payment of the amount, threatening proceedings if the same were not paid to him. The defendant received in due course the purchased money of the residue of the goods sold at the said auction. The plaintiffs brought an action, on the 13th October, in this Court against Pitman, and, on the 21st October, obtained judgment by default for the sum of 1451. 17s. 4d. On the 24th October an order in the action Hobius v. Pitman was obtained ex parte, on an affidavit of plaintiffs' attorney, under and pursuant to the provisions of the 61st section of the Common Law Procedure Act, 1854 (17 & 18 Viet. c. 125), of which the following is a copy, "In the Queen's Bench. William Holmes and John Whittle, judgment creditors, against Simeon Pitman, judgment debtor, Charles Tutton, garnishee. Upon hearing the attorneys or agents for the judgment creditors, and upon reading the affidavit of Joseph Kilvert Bartrum, I do order that all debts due and owing (or accruing due) from the above named garnishee to the above named judgment debtor be attached to answer a judgment recovered against the above named judgment debtor, on the 21st day of October 1854, by the above named judgment creditors. 1 further order that the above named garnishee, his attorney or agent, attend me at my Chambers, in Rolls Garden, Chancery Lane, London, on Saturday the 28th day of October instant, at 11 of the dock iii the foreuoou, to shew cause why [68] he should not pay the judg- 5 EL. & BL. 69. HOLMES V. TUTTON 407 ment creditors the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the said judgment debt. Dated the 24th day of October 1854. "charles ceompton." This order was served on the defendant on the 25th October 1854. On the 25th October (but at a time subsequent to the...
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Chelmsford Auctions Ltd v Poole
...happened in two cases where the auctioneer had already received his commission-and the purchaser had a set-off against the vendor see Holmes v. Tutton (1855) 5 Ellis & Blackburn 65, at page 82; Grice v. Kenrick (1870) 5 Q.B. 340: and in another case where the auctioneer has deceived the pur......
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...Investment Corp. v. Tri-Dell James Construction Ltd. (1981), 32 A.R. 299, refd to. [para. 27]. Holmes v. Tutton (1855), 5 E & B 65; 119 E.R. 405, refd to. [para. Toole Peet Trust Co. v. London Life Ins. Co., [1935] 3 W.W.R. 311 (Alta, S.C.), refd to. [para. 30]. McLatchee v. McLeod (189......
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